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“Corporations Aren’t People”: If Given The Freedoms Of “People”, Corporations Should Be Subjected To Obligations And Restrictions Too

If you thought this “corporations are people” business was getting out of hand, brace yourself. On Tuesday, the Supreme Court accepted two cases that will determine whether a corporation can deny contraceptive coverage to its female employees because of its religious beliefs.

The cases concern two of the most politically charged issues of recent years: who is exempted from the requirements of the Affordable Care Act, and whether application of the First Amendment’s free speech protections to corporations, established by the court’s 2010 decision in Citizens United, means that the First Amendment’s protections of religious beliefs must also be extended to corporations.

The Affordable Care Act requires employers to offer health insurance that covers contraception for their female employees. Churches and religious institutions are exempt from that mandate. But Hobby Lobby, a privately owned corporation that employs 13,000 people of all faiths — and, presumably, some of no faith — in its 500 craft stores says that requiring it to pay for contraception violates its religious beliefs — that is, the beliefs of its owners, the Green family.

In a brief submitted to a federal court, the Greens said that some forms of contraception — diaphragms, sponges, some versions of the pill — were fine by them, but others that prevented embryos from implanting in the womb were not. The U.S. Court of Appeals for the 10th Circuit upheld the Greens’ position in June in a decision explicitly based on “the First Amendment logic of Citizens United.” Judge Timothy Tymkovich wrote: “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.”

Tymkovich’s assessment of how the five right-wing justices on the Supreme Court may rule could prove correct — but what a mess such a ruling would create! For one thing, the Green family’s acceptance of some forms of contraception and rejection of others, while no doubt sincere, suggests that they, like many people of faith, adhere to a somewhat personalized religion. The line they draw is not, for instance, the same line that the Catholic Church draws.

Individual believers and non-believers draw their own lines on all kinds of moral issues every day. That’s human nature. They are free to say that their lines adhere to or are close to specific religious doctrines. But to extend the exemptions that churches receive to secular, for-profit corporations that claim to be following religious doctrine, but may in fact be nipping it here and tucking it there, would open the door to a range of idiosyncratic management practices inflicted on employees. For that matter, some religions have doctrines that, followed faithfully, could result in bizarre and discriminatory management practices.

The Supreme Court has not frequently ruled that religious belief creates an exemption from following the law. On the contrary, in a 1990 majority opinion, Justice Antonin Scalia wrote that Native Americans fired for smoking peyote as part of a religious ceremony had no right to reinstatement. It “would be courting anarchy,” Scalia wrote in Employment Division v. Smith, to allow them to violate the law just because they were “religious objectors” to it. “An individual’s religious beliefs,” he continued, cannot “excuse him from compliance with an otherwise valid law.”

It will be interesting to see whether Scalia still believes that now that he’s being confronted with a case where the religious beliefs in question may be closer to his own.

The other issue all this raises: Where does this corporations-are-people business start and stop? Under the law, corporations and humans have long had different standards of responsibility. If corporations are treated as people, so that they are free to spend money in election campaigns and to invoke their religious beliefs to deny a kind of health coverage to their workers, are they to be treated as people in other regards? Corporations are legal entities whose owners are not personally liable for the company’s debts, whereas actual people are liable for their own. Both people and corporations can discharge their debts through bankruptcy, but there are several kinds of bankruptcy, and the conditions placed on people are generally far more onerous than those placed on corporations. If corporations are people, why aren’t they subject to the same bankruptcy laws that people are? Why aren’t the owners liable for corporate debts as people are for their own?

If corporations are going to be given the freedoms that people enjoy, they should be subjected to people’s obligations and restrictions too. I’m not sure how many corporations would think that’s such a good deal.


By: Harol Meyerson, Opinion Writer, The Washington Post, November 26, 2013

November 28, 2013 Posted by | Affordable Care Act, Contraception, Corporations | , , , , , , | Leave a comment

“Correcting The Record Of Strategic Disinformation”: We Have The Most Conservative Supreme Court In Decades

In recent years, the United States Supreme Court has turned corporate treasuries into campaign slush funds for CEOs, demolished campaign finance laws, aided and abetted pay discrimination, made it much harder for consumers and workers to file class action lawsuits against corporations that have cheated them, and kindly delivered the White House to one lucky Republican from Texas.

Study after study has found that the Supreme Court under Chief Justice John Roberts and his predecessor William Rehnquist has swerved hard to the right, systematically favoring corporate interests over workers, consumers and voters — to a shocking extent.

So why does a plurality of Americans still think that the Supreme Court leans to the left?

A new poll from Public Policy Polling finds that 36 percent of Americans believe the Supreme Court is “too liberal,” compared with just 30 percent who find it “too conservative” and 29 percent who think it’s ideologically “about right.” The poll highlights a problem that has long plagued progressives who care about the courts: while the Supreme Court and lower federal courts continue to drive to the right, many Americans, strangely, have come to believe that the courts tilt to the left.

This misperception of the federal judiciary, and especially the Supreme Court, is no fluke. It is the residue of more than a half-century of propaganda by the right labeling the Supreme Court a bastion of runaway liberal judicial activists who supersede the will of the people to impose their own views on innocent Americans. This campaign began with “massive resistance” to landmark civil rights and civil liberties decisions of the Warren Court, most notably Brown v. Board of Education (1954), which desegregated the schools and prompted an “impeach Earl Warren” movement; Engel v. Vitale (1962), which struck down compulsory prayer in the schools and was blamed for the moral downfall of America; and Miranda v. Arizona (1966), which gave people basic rights in encounters with the police and was decried as “pro-criminal.” The campaign against the Court intensified with the response to Roe v. Wade (1973), which recognized the reproductive rights of women as a matter of constitutional privacy but has been depicted ever since by the right as the epitome of illegitimate judicial activism.

The movement to turn the clock back on civil rights and civil liberties in the courts has continued for decades and been bolstered by the Chamber of Commerce and big business, which want to see the federal judiciary enshrine new constitutional rights for corporations while dismantling public regulation.

In recent decades, right-wing leaders have worked in popular culture to attack the courts as a liberal peril while successfully organizing to dominate and control legal institutions to create courts that no longer look out for the rights of all Americans. They have set up law schools and legal societies to promote corporate and right-wing commitments, have promoted the appointment of reactionary judges and Justices, blocked the appointment of even moderate jurists, and defined a legal agenda that subordinates individual rights to government power and public regulation to corporate power. Right-wing success in remaking the judiciary in the image of the Republican Party has not led conservatives to curb their bitter attack on “liberal judicial activism,” a fantasy that is several decades out of date but indispensable to this smoke-and-mirrors operation.

Without mass education by progressives to reclaim the public narrative about the courts, popular illusions about the nature of our right-wing judiciary will persist. A perfect example of public confusion is the reaction to the Supreme Court’s narrow decision to uphold the Affordable Care Act. Chief Justice Roberts’ decisive vote to uphold the law was hailed on the left and seen as a stunning betrayal on the right. But what got little attention was how conservative the logic of the decision to uphold the ACA really was. While the final outcome was good news for progressives, Roberts’ opinion laid the groundwork for severely restricting the ability of the federal government to solve national problems under the Commerce Clause — harkening back to the gilded-age Lochner Era, when the Supreme Court routinely struck down regulatory protections for ordinary Americans.

The left needs to wake up. PPP found that less than half of Democrats recognized the conservative leaning of the Supreme Court. As the Supreme Court’s blockbuster decisions on marriage equality, voting rights and affirmative action come down this spring we may have some reasons to celebrate and others to mourn. But we will doubtless be reminded again that Supreme Court decisions often have much less to do with evolving legal theory than with which president appointed the Justices. Conservatives know this and liberals need to wake up to it as well.

Four decades into conservative control of the Supreme Court (through the Burger, Rehnquist and Roberts Courts), and well into President Obama’s second term, conservatives still promote the absurd story that the Supreme Court and judiciary are “liberal.” We must do everything we can to correct the record and dispel the lingering false impressions left by decades of strategic disinformation.


By: Michael B. Keegan, The Huffington Post, May 24, 2013



May 26, 2013 Posted by | Federal Judiciary | , , , , , , , , | 1 Comment

“Vulnerability Of The Vote”: Insurance Against Racial Suppression Should Not Be On A Backwards Slide

An odd scene unfolded in Washington on Wednesday: as the president and leaders of Congress were dedicating a statue to Rosa Parks, the lifelong activist whose defiance on a Montgomery, Alabama, bus helped spark the Civil Rights Movement, across the street the Supreme Court heard oral arguments on one of the signature piece of civil rights legislation, the Voting Rights Act.

Specifically, the court heard the case of Shelby County v. Holder, in which that Alabama county seeks to overturn Section 5 of the Voting Rights Act, which was passed in 1965. That section requires states — and some municipalities — to get pre-clearance from the Justice Department or the District of Columbia federal court before making any changes to voting laws.

The fundamental question is whether states that have a history of voter suppression should forever have to live with the legacy of that past.

The problem with the law, in my mind, is that it should be expanded rather than struck down.

The Brennan Center for Justice at New York University maintains that “Section 5 is an essential and proven tool.” According to the center:

“Although progress has been made since the Voting Rights Act passed in 1965, voting discrimination still persists. Between 1982 and 2006 (when Congress overwhelmingly renewed the law), the Voting Rights Act blocked more than 1,000 proposed discriminatory voting changes. Without Section 5’s protection, these changes would have gone into effect and harmed minority voters.”

The center calls the passage of the Voting Rights Act “a reflection of the promise of our Constitution that all Americans would truly have the right to vote without facing discrimination, poll taxes, and other abuses,” and I wholeheartedly agree with that point of view.

The problem that the law may run into is that it’s too narrow.

In a 2009 ruling questioning the constitutionality of Section 5, Chief Justice John G. Roberts Jr. wrote:

“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by Section 5 than it is nationwide.”

If the Voting Rights Act covered all states and not just some, Justice Roberts’s argument would be null. In fact, there is growing evidence that such a national requirement would be prudent. Many of the states that sought to install voter suppression laws leading up to last year’s election were in fact not covered by Section 5.

Roberts hammered this point home Wednesday during oral arguments, asking, “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?”

Seven of the nine states covered by Section 5 are in the south (Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia). The other two states are Arizona and Alaska. Some counties and townships are covered in other states.

The Southern states that Section 5 applies to span the Black Belt of the south, a region with the most glaring electoral abuses in the 1960s.

A November Pew Research Center report points out the obvious: blacks were the largest minority group in 1960, but that is no longer the case.

According to the report, blacks were 11 percent of the population, while Hispanics were 3.5 percent and Asians were .6 percent. Since then, the demographics of the country have changed dramatically. According to Pew, in 2011 blacks were 12 percent of the population, while Hispanics were 17 percent and Asians were 5 percent. And the numbers are projected to change even more. By 2050 Pew estimates that blacks will be only 13 percent of the population, while Hispanics will be 29 percent and Asians 9 percent.

To boot, Hispanics and Asians geographically dispersed differently than blacks.

We not only need to keep Section 5 in place, we also need to consider expanding it so that every voter has fair and equal access to the ballot. There are hurdles to achieving this goal, of course. The court might also find that it’s unconstitutional to broaden that section of the law, deeming it too onerous and an infringement on states’ rights — particularly those states that don’t have a demonstrable, endemic, systematic history of discrimination.

Still, it’s worth some thought.

During oral arguments, Justice Antonin Scalia went so far as to call Section 5 the “perpetuation of racial entitlement.” (That guy…) It’s not a racial entitlement, sir, but insurance against racial suppression.

In the president’s remarks at the statue dedication, he rightfully hedged his words. Instead of saying that because of people like Parks our children grow up in a land that is free and fair and true to its founding creed, he said that because of them it is “more free and more fair; a land truer to its founding creed.” (Emphasis mine.)

We’ve come a long way, but we’re not there yet, and the last thing we want or need now is to slide backward.


By: Charles M. Blow, Op-Ed Columnist, The New York Times, February 27, 2013

March 3, 2013 Posted by | Civil Rights, Voting Rights | , , , , , , , | 2 Comments

“Hanging In The Balance”: The Supreme Court, The Elections And Beyond

Just a few elections ago, I remember people wore button that said, “It’s the Supreme Court, stupid.” But during this fall election season, the future of the Supreme Court has received very little mainstream attention, even though decisions by that august body have an impact that can last far longer than the term of a member of the House or Senate and certainly longer than that of any single president. On the current court, four justices are 74 years old or older — two from each side of the ideological divide, and it is quite likely the next president will pick at least one new one.

What hangs in the balance? Many issues but of particular note is: Roe v. Wade. It need not be completely overturned for abortion to become out of reach for the vast majority of American women, or to undermine their autonomy in making this most personal decision. In fact 87 percent of all U.S. counties — counties in which 35 percent of all women in the US now live — already lack an abortion provider. Efforts to make abortion even more inaccessible continue apace, with many states passing huge increases in anti-abortion regulations after the election of 2010. The fate of those laws with this Supreme Court remains to be seen, but should any of them reach the court, a majority may well seize the opportunity to strike down Roe in its entirely or eviscerate it beyond recognition.

Years of progress on keeping the principle of separation of religion and state alive and well is also endangered. Despite a track record in the law that upholds government enforcement of anti-discrimination laws regardless of religious belief — for example, you can’t refuse to serve an African-American a cup of coffee based on a biblical belief of inferiority — the current court may give employers the right to cite their religious beliefs as a justification for discriminating against women by denying them insurance coverage for contraceptives, even when the employer isn’t paying for it.

Other reforms of the mid-20th century are also at stake. Laws that finally made it illegal to discriminate on the basis of race, religion, gender, and national origin are under attack. The basic principles may remain, but the ability to enforce them has repeatedly been weakened by the Supreme Court, most recently in the Lilly Ledbetter case when the court rendered an unreasonably narrow interpretation of the federal law against job discrimination. The long Supreme Court campaign against affirmative action could produce another setback by spring in Fisher v. Texas case heard October 10, if efforts to achieve diversity in higher education are overturned.

Voting rights protections, the bedrock of the 1960s civil rights revolution, are being unraveled in many states, and appeals to the Supreme Court are certain to happen in the next session. The new state laws undermine the idea that government should make voting as easy as is reasonably possible. The Supreme Court’s faulty 2008 decision in Crawford v. Marion County Election Board, an Indiana case upholding photo ID requirement without any inquiry into their chilling effect, has reaped a whirlwind of efforts to disfranchise millions.

The Supreme Court’s willingness to reverse long-standing precedent in the service of an ideological agenda is epitomized by its decision in Citizens United where the court went out of its way to rule that corporations have the same free speech rights as living people. That ruling overturned a principle of 70 years’ standing and unleashed a flood of money into the election process that eclipses the Watergate era and has seriously altered the political landscape of this election.

A look back at the last decade is not encouraging to those who believe as I do that our courts should dispense justice in keeping with the progress we have made in upholding individual rights, ending discrimination, and adhering to our founding principles of liberty and justice for all. Often we can’t quite put our finger on the correlation between a judge’s background and life experiences and the rulings rendered by the courts on which he or she presides. But it is surely there. It is widely conceded that a majority of those who sat on the Supreme Court before the Civil War were in fact slaveholders. It’s pretty hard to imagine that their decisions weren’t influenced by that fact. The first black justice, Thurgood Marshall, did not serve until 1967; the first woman, Sandra Day O’Connor, not until 1981. Their life experiences, for centuries excluded from our judicial system, were certainly linked to their legal decision-making.

Today with the court polarized, every presidential nomination to the Supreme Court matters. Each can help further the progress our country has made in achieving equality and justice, or transport us back to a time when the courts ignored the rights of women and African Americans, of religious and ethnic minorities, of criminal defendants and others to equal treatment and due process. As voters, we bear the ultimate responsibility for making sure we know what kind of justice the candidates for president would likely appoint.


By: Nancy K. Kaufman, CEO, National Council of Jewish Women: Published in The Blog,The Huffington Post, October 25, 2012

October 27, 2012 Posted by | Election 2012 | , , , , , , , , | 1 Comment

“A Choice Bigger Than The Next Four Years”: Progressives Must Work To Retake The Supreme Court

While the election is dominated by talk of the economy and Mitt Romney’s latest foreign policy blunder, don’t lose sight of one important fact: Perhaps nothing will have a bigger impact on the United States’ future than the Supreme Court. And with four justices above the age of 70, the next president of the United States could have enormous power to shape the court for generations to come. Age is not, as Playboy mogul Hugh Hefner has suggested, just a number.

In a government paralyzed by partisan gridlock on the most important matters of the day, the Supreme Court has become what Bill Moyers calls “The Decider.” A majority of the justices has taken a far right turn in its decisions.

This extremism has a history. In 1971, Lewis Powell, then a corporate lawyer and soon to be a Supreme Court justice, wrote a memo at the request of the U.S. Chamber of Commerce, urging it to push for an activist, pro-business court that would rubber-stamp its agenda. Powell’s memo laid the groundwork for a right-wing rise in all areas of public life, including law firms, think tanks, campus organizations and media outlets. The 1987 failed Supreme Court nomination of right-wing ideologue Robert Bork was, in hindsight, only a setback in the movement to push the court toward the right. Extremists including Clarence Thomas and Samuel Alito would eventually be confirmed.

For much of the past 40 years, even as the court has contributed to growing inequality and the enrichment of the 1 percent at the expense of the 99 percent, public opinion has largely and consistently favored the justices. But today, after a series of 5 to 4 decisions in high-profile cases such as Bush v. Gore, Citizens United and the Affordable Care Act, 75 percent of Americans believe that the justices’ decisions are influenced by their personal or political views.

They’re right. The court headed by right-wing Chief Justice John Roberts has suppressed the ability to organize through labor unions. It has weakened the right to bring class-action lawsuits. It has impeded ordinary people’s access to courts. It has given corporations more power — and personhood — to inflict their will on Americans. It has shielded financial institutions from accountability. It even threatened the Constitution’s commerce clause in its health-care decision, putting a range of social programs and protections at risk.

Unless progressives find a new way forward, the juris-corporatists will only strengthen their grip on our courts. As Alliance for Justice President Nan Aron outlines in this week’s issue of the Nation (which is devoted to the 1 percent court), progressives cannot sit on the sidelines. Indeed, they should take a page from the Powell playbook, adopting “a new way of thinking about the courts, new tactics for shaping the public debate, and a whole lots more energy from the left.”

Progressives should focus on “building the bench for the bench” with a pipeline of progressive legal talent ready to fill judicial appointments — and a Senate that understands the importance of those candidates. And just as conservatives have used the courts to mobilize their supporters, progressives must make this a galvanizing issue. This means educating the public about how Supreme Court decisions impact almost every aspect of their lives. Moreover, progressives must reshape the debate by exposing the hypocrisy of a right wing that criticizes so-called “activist judges” on the left while aggressively pushing justices who legislate from the bench.

In the four decades since the Powell memo, the right has understood and used the power of the courts to shape U.S. politics, U.S. policies and the U.S. economy, while progressives simply haven’t demonstrated the same intensity on this issue.

In this election year, with so much at stake, there is an enormous opportunity to close that intensity gap. Unless the Supreme Court becomes a central issue in this election, progressives are at risk of losing everything they care about, fought for and won.

This is no exaggeration. Let’s not forget that Mitt Romney has resurrected Bork as his chief judicial adviser. This is a man who would overturn Roe v. Wade, who doesn’t think the equal protection clause applies to women, who consistently favors corporations over citizens, who opposes voting rights. He originally opposed the 1964 Civil Rights Act! As Sen. Edward Kennedy said before the Senate rejected the nomination, in Bork’s America, “the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are at the heart of our democracy.”

With Mitt Romney in the White House, Bork would be in a position to reverse the progress the United States has made to expand its democracy.

In this election, Americans have a choice that is bigger than the next four years. They will choose between those who would turn the clock back economically, culturally and socially to the days before the New Deal, or those who want to build a more just, fair and diverse 21st-century society.


By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, September 18, 2012




September 22, 2012 Posted by | Election 2012 | , , , , , , , , | Leave a comment

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